Canadian Appeals Court Rules That Former Guantánamo Prisoner Omar Khadr Should Be Serving a Youth Sentence
10.7.14
Good news about Guantánamo is rare — whether regarding those still held, or those released — so it was reassuring to hear this week that the Court of Appeal in Alberta, Canada, delivered a major blow to the Canadian government’s efforts to hold former prisoner Omar Khadr in federal prison rather than in a provincial jail. Khadr is serving an eight-year sentence handed down in a plea deal at his trial by military commission in Guantánamo in October 2010, and has been held in federal prisons since his return to Canada, where he was born in 1986.
The 27-year old was just 15 years old when he was seized in Afghanistan after a firefight with US forces in a compound. He had been taken there, and deposited with some adults, by his father, but on his capture, when he was severely wounded, he was abused in US custody and eventually put forward for a war crimes trial, even though, as a juvenile at the time of the alleged crime, he should have been rehabilitated rather than punished according to an international treaty on the rights of the child signed by the US (and by Canada), even though there is no evidence that the allegation that he threw a grenade that killed a US soldier is true, and even though there is no precedent for claiming that a combat death in an occupied country is a war crime.
Khadr has since explained that he only agreed to the plea deal because he could see no other way of ever getting out of Guantánamo, and last November, via his US civilian lawyer, Sam Morison, he appealed in the US for his conviction to be overturned. In recent years, US appeals court judges have delivered two devastating rulings, overturning two of the only convictions secured in the military commissions, in the cases of Salim Hamdan and Ali Hamza al-Bahlul, on the basis that the war crimes for which the men were convicted were not war crimes at the time the legislation authorizing the commissions was passed — and had, in fact, been invented by Congress.
As Sam Morison told Colin Perkel of The Canadian Press last November, “the main argument turns on whether what Khadr is accused of doing as a 15 year old in Afghanistan was in fact a war crime under American or international law.” Morison explained, “These things weren’t crimes, at least in 2002. They weren’t crimes at the time of the charged conduct. Even if you take the government’s allegations at face value, he still didn’t commit a war crime.”
Perkel added, “The basis for charging [Khadr] for the battlefield death was that he was not in uniform, and was therefore an ‘unprivileged combatant,’” but Morison pointed out, as Perkel put it, that “there is no authority under international law to elevate what Khadr did to the status of a war-crime, which includes such egregious acts as deliberately targeting and killing civilians as the 9/11 terrorists did.”
As Morison described it, “Merely being an unlawful combatant is not by itself a war crime. War crimes still have to be war crimes. It has to do with what you do.” And on this basis, as I explained at the time, “even if Khadr had thrown the grenade that killed US Special Forces Sgt. Christopher Speer, who died in the firefight, it was not a war crime.”
A decision has not yet been taken on Khadr’s US appeal, but in the meantime the government of Stephen Harper has been doing all it can to defend Khadr’s imprisonment in a maximum-security prison since his return to his home country in September 2012.
That false insistence that Khadr should be held in a maximum-security prison was dealt a major blow last August, when Canada’s prison ombudsman Ivan Zinger, the executive director of the independent Office of the Correctional Investigator, said that prison authorities had “ignored favorable information” in “unfairly branding” Khadr as a maximum security inmate.
As I explained in an article at the time:
Zinger wrote, “The OCI has not found any evidence that Mr. Khadr’s behaviour while incarcerated has been problematic and that he could not be safely managed at a lower security level. I recommend that Mr. Khadr’s security classification be reassessed taking into account all available information and the actual level of risk posed by the offender, bearing in mind his sole offence was committed when he was a minor.”
Zinger, who also called Khadr’s case “unique and exceptional,” added that Khadr had “shown no evidence of problematic behaviour while in Canadian custody,” and noted that the US authorities “had categorized him as minimum security” — a particularly pertinent point to highlight the injustice of his treatment in Canada.
In December, Khadr was reclassified as a medium-security risk, and in the new year he was moved from Edmonton, where he was being held as a maximum-security prisoner, to Bowden Correctional Institution, north of Calgary — although Ivan Zinger has continued to criticize the government, complaining in a letter in to the Correctional Service of Canada that Khadr was still “unfairly classified,” even though the authorities had “lowered his risk rating from maximum to medium security.”
As he explained (and as I described it):
[T]he Canadian prison authorities have described Khadr as being “polite, quiet and rule-abiding,” and as someone who “does not espouse the criminal attitudes or code of conduct held by most typical federal offenders,” and, crucially, have also noted that they do not possess any information to suggest that he “espouses attitudes that support terrorist activities or any type of radicalized behaviour.”
However, while Khadr’s prison move was progress, his efforts to get a Canadian judge to recognize that his punishment in his home country was disproportionate fell on deaf ears last October, when, in a court in Edmonton, Justice John Rooke refused to allow his transfer to a provincial jail. As I described it in an article at the time, Khadr’s long-term civilian lawyer, Dennis Edney, had “argued that, as a sentence for murder in Canada, eight years would be regarded as a youth sentence (because a life sentence is mandatory for an adult murder conviction), and therefore Khadr should not have been sent to a maximum security prison.”
However, as I also wrote at the time:
[A]lthough Justice Rooke agreed that eight years was not an adult sentence, he accepted eight years as an appropriate punishment for the other four war crimes that Khadr agreed to in his plea deal. As he wrote in his ruling, “Mr. Khadr’s sentence could have been a single youth sentence and four adult sentences. However, Mr. Khadr obviously cannot be in both an adult provincial facility for adults and a penitentiary at the same time.” He added, as the Toronto Star put it, that “where there is ambiguity, the law dictates that the inmate should serve an adult sentence.”
Omar Khadr’s appeals court victory
Justice Rooke’s ruling has now been struck down by the appeals court. “We have concluded that the chambers judge erred in law in finding that Khadr was properly placed in a federal penitentiary under the ITOA (International Transfer of Offenders Act),” Justices Catherine Fraser, Jack Watson and Myra Bielby ruled, adding, “We conclude that Khadr ought to have been placed in a provincial correctional facility for adults.”
The judges also stated, “In summary, the eight-year sentence imposed on Khadr in the United States could only have been available as a youth sentence under Canadian law, and not an adult one, had the offences been committed in Canada.”
As the Globe and Mail described it, the ruling was “a vindication of the view held by lawyers for Mr. Khadr that the Conservative government went out of its way to treat their client harshly — more harshly than the laws of Canada allow.”
As the judges noted, “While not explicitly stated, it appears that underlying the [Attorney-General of Canada’s] position on this appeal is the view that a cumulative sentence of eight years for the five offences to which Khadr pled guilty is not sufficiently long to reflect the seriousness of the offences.”
The court also noted that, “if the Canadian justice department wished to make that argument,” as the Globe and Mail put it, Khadr “could respond that the US military justice system treated him unfairly — an argument he might well win, for reasons the court took some pains to spell out.”
Partly this involves Khadr’s appeal against his conviction in the US (as mentioned above), but also, as the judges reminded the government, “[t]he legal process under which Khadr was held and the evidence elicited from him have been found to have violated both the Charter and international human rights law” in two rulings from the Supreme Court of Canada delivered before Khadr’s plea deal and his return to Canada from Guantánamo. One involved questioning him without counsel while he was still a teenager (as seen in the documentary film, “You Don’t Like the Truth: 4 Days in Guantánamo“), and the other involved turning over information from the interrogations to the US authorities.
As an aside, the Globe and Mail added that, last fall, Prime Minister Stephen Harper “named a little-known lower-court judge who found Canada nearly blameless in the Khadr affair to the Supreme Court,” but that “the court ruled the appointment of Justice Marc Nadon of the Federal Court of Appeal illegal.”
As the Globe and Mail put it, this week’s appeals court ruling “also brings [Khadr] a step closer to freedom.” Nate Whitling, one of his lawyers, said in an interview that his client now “has the right any time he wishes to apply to a Youth Court judge for early release,” as the newspaper put it, adding, “Without the ruling, his only chance at release would be through the National Parole Board.”
The Canadian Press added that, “[a]s a young offender, Khadr would get an annual review for release before a youth judge,” and noted that Whitling “said the judge could order his release and let him serve out his sentence in the community,” As CBC News described it, he told Rosemary Barton on CBC News Network’s Power & Politics, “A youth sentence carries many advantages under Canadian law. Such sentences are designed to rehabilitate and reintegrate people like Omar in recognition of the fact that the events occurred when they were youths. The law of Canada confirms that youths, like Omar, have diminished culpability for the actions that occur when they are children under the law.”
Whitling also said he “spoke by phone with Khadr after the court decision and, while his client is optimistic about a transfer and eventual application for release, he’s worried he won’t get the chance.”
The Canadian government’s disgraceful decision to appeal the ruling
That was understandable. While Whitling explained that the ruling meant that Khadr “will ask to be moved to jail in Fort Saskatchewan, north east of Edmonton, to be closer to his Edmonton lawyers,” within three hours of the ruling, Public Safety Minister Steven Blaney spoke out, saying that a youth sentence was “not appropriate” for Khadr, and stating that the government will appeal to the Supreme Court.
Blaney wheeled out the government’s usual statement about Khadr’s US conviction — that Khadr “pleaded guilty to heinous crimes,” and that the government has “vigorously defended against any attempt to lessen his punishment for these crimes” — and added, “That is why the government of Canada will appeal this decision and seek a stay to ensure that he stays in federal prison — where he belongs.”
Dennis Edney explained why the appeals court ruling was important. “We are pleased to get Omar Khadr out of the hands of the Harper government,” he said, adding, “This is a long series of judgments against this intractable, hostile government,” which “would rather pander to politics than to apply the rule of law fairly to each and every Canadian citizen.”
Edney also pointed out, “This government chose to misinterpret the International Transfer of Offenders Act and place Omar in a maximum security prison, where he spent the first seven months in solitary confinement, instead of treating him as a youth as required under both Canadian and international law.”
On CBC News, Françoise Boivin of the New Democratic Party (NDP) said the government should respect the appeals court ruling, and “should think twice” about appealing to the Supreme Court. “The Conservative government is starting to cost us a lot of money in all their court challenges that they seem to lose one after the other,” she said.
That is certainly true, and I hope the Harper government is listening — not only because it loses every argument it tries to win in Omar Khadr’s case, and not only because it is wantonly spending taxpayers’ money doing so, but above all because its position is wrong, and fundamentally indefensible. It would be hard to conceive of a manner in which any other Canadian citizen has been treated as disdainfully by their government as Omar Khadr, and yet the lies and the racism of the government continue unabated, aided by unjustifiable initiatives like the one launched by Canada’s Welland Tribune in the wake of the appeals court decision — a poll asking readers, “Should Omar Khadr be allowed to transfer to a provincial jail?” as though, absurdly, the opinions of unqualified civilians regarding the law (and, specifically, the International Transfer of Offenders Act) are as valid as those of the judges who made the ruling.
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.
Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.
Who's still at Guantánamo?
21 Responses
Andy Worthington says...
On Facebook, Albert Melise wrote:
He should have been free a long time ago.
...on July 10th, 2014 at 7:59 pm
Andy Worthington says...
Thanks, Albert. Very good to hear from you – and you are absolutely right. If there was justice in Canada, Omar would have been set free soon after his return. After all, the Canadian Supreme Court ruled that the Canadian government had violated his rights, but that same government has refused to acknowledge any fault on its part, instead repeating, ad nauseam, that Omar “pleaded guilty to heinous crimes” – as though the military commissions were a fair process, and not somewhere profoundly unjust, where a former child prisoner was pressurized to take a plea deal and admit to invented war crimes in order to be released from Guantanamo and returned to his home country.
...on July 10th, 2014 at 7:59 pm
Andy Worthington says...
Albert’s story is here, btw: http://www.truth-out.org/news/item/2881:exguantanamo-guard-opens-up-about-detainee-treatment
And here: http://truth-out.org/news/item/2901:army-reservist-told-hes-barred-from-reenlistment-for-speaking-to-truthout-about-guantanamo
...on July 10th, 2014 at 8:02 pm
Andy Worthington says...
Albert Melise wrote:
I might have to go see him and help protest while I take my holiday or vacation as some of us say. I’m also going to write him if possible as well as Moazzam Begg. I think I wrote down the address for where Moa is being held at the moment.
...on July 10th, 2014 at 8:29 pm
Andy Worthington says...
I’m sure that would be very much appreciated, Albert. Omar’s address at present is:
Omar Khadr
Bowden Institution, Unit #3
Highway #2
PO Box 6000
Innisfail, Alberta
T4G 1V1
Canada
The Free Omar Khadr Campaign has the following advice sheet: http://freeomarakhadr.files.wordpress.com/2012/09/does-and-donts-for-sending-letters-to-omar.pdf
However, I hope to be able to announce soon that Omar has been moved to a provincial jail Fort Saskatchewan, where Nate Whitling said he will ask to be moved.
...on July 10th, 2014 at 8:30 pm
Andy Worthington says...
As for Moazzam, his address is as follows:
Moazzam Begg
A8423DD
HMP Belmarsh
Western Way
Thamesmead
London SE28 0EB
Cage (formerly Cageprisoners) gives the following advice:
– Do not discuss his case;
– Keep the letter to a sensible length;
– Bear in mind that all letters are filed and read by the prison security, and can be used as evidence against Moazzam during his trial;
– Please keep the tone as an encouragement to him, so that he feels the presence of his supporters from around the world.
Info via Islam21C.com: http://www.islam21c.com/politics/a-letter-from-moazzam-begg/
My articles on Moazzam’s arrest here: http://www.andyworthington.co.uk/2014/02/26/the-suspicious-arrest-of-former-guantanamo-prisoner-moazzam-begg/
And here: http://www.andyworthington.co.uk/2014/02/27/radio-andy-worthington-discusses-the-arrest-of-former-guantanamo-prisoner-moazzam-begg-with-andrea-sears/
And the denial of bail on May 2, and the media blackout that accompanied it, is discussed here: http://muslimmedianetwork.com/mmn/?p=15413
...on July 10th, 2014 at 8:31 pm
Andy Worthington says...
Albert Melise wrote:
Thanks i’ll write them both tonight
...on July 10th, 2014 at 8:45 pm
Andy Worthington says...
Great. Happy to help, Albert.
...on July 10th, 2014 at 8:46 pm
Andy Worthington says...
Aaf Post wrote:
Hi Andy, you will also love this: http://freeomarakhadr.com/2014/07/10/desmond-tutu-why-i-called-omar-khadr/
...on July 11th, 2014 at 12:35 am
Andy Worthington says...
Thanks, Aaf. I do indeed. Desmond Tutu is someone with a powerful moral presence, and for him to call Omar, and to make such incisively critical comments about Guantanamo, as he has over the years, can only be helpful.
...on July 11th, 2014 at 12:36 am
Curt Wechsler says...
one of Omar’s defenders is now Dean of Berkeley Law, home of torture professor John Yoo.
http://www.firejohnyoo.net/2014/07/sujit-choudhry-v-john-yoo.html
...on July 11th, 2014 at 6:51 am
Andy Worthington says...
Thanks, Curt. Great to hear from you!
As you note, Sujit Choudhry, the new Dean of Berkeley Law School, now has the power to hold law professor John Yoo accountable for his actions, as one of the architects of the Bush administration’s torture program.
In January 2010, Choudhry was a lawyer with the British Columbia Civil Liberties Association, and was co-counsel when the BCCLA “appeared as an intervener on behalf of Mr. Khadr” when Canada’s Supreme Court ruled that “the Government of Canada violated the Charter rights of Guantanamo detainee Omar Khadr.”
Joseph Arvay and Sujit Choudhry, who were co-counsel for the BCCLA, issued the following statement: “The Government of Canada can take no comfort in this judgment. The Supreme Court has unequivocally held that Canada’s interrogations of Omar Khadr were flagrant violations of the Charter, and that Canada’s unconstitutional conduct contributes to Mr. Khadr’s detention to this day. The Prime Minister must now act in accordance with the Charter. The Court has left open the door to ordering the Canadian government to do more.”
See: http://bccla.org/news/2010/01/canada-violated-omar-khadrs-charter-rights-supreme-court/
...on July 11th, 2014 at 9:42 am
Andy Worthington says...
Here’s a very good editorial in the Globe and Mail on July 9:
Every Canadian deserves justice. Even Omar Khadr.
Omar Khadr is often referred to as a convicted war criminal and murderer. In a sense, he is: In 2010, he pleaded guilty to charges of conspiracy, spying and providing material support to terrorism, along with attempted murder and murder.
But there’s a giant, glowing asterisk attached to all of that. The American military tribunal at Guantanamo Bay that convicted Mr. Khadr was not a normal court. It was a pantomime of justice, removed from the normal American legal system, and relying on made-up rules and novel legal interpretations. The main evidence against him was a confession, obtained years earlier under what any reasonable person would describe as abuse or torture. And before he pled guilty, it was made clear that unless he did so, he faced a lifetime of detention without trial. He had at that point already spent nearly a decade in American custody, held in places that were for a time entirely removed from the realm of law, where abuse and torture were standard operating procedure.
Mr. Khadr was sentenced by a kangaroo court, one worthy of a Middle Eastern dictatorship or Kafka short story. Or as the Alberta Court of Appeal put it this week, in drily damning language, “the legal process under which Khadr was held and the evidence elicited from him have been found to have violated both the Charter and international human rights law.” The Supreme Court of Canada has also said as much.
Mr. Khadr was a minor when the alleged crimes were committed; he was just 15 when captured on the battlefield, severely wounded. That’s why the Alberta court ordered that as he continue serving his sentence in a Canadian prison, he be transferred from federal custody to a provincial facility. Under Canadian law, when the things he is accused of occurred, he was a kid. Under international law, he was a child soldier, more victim – of al-Quaeda and his own family – than accomplice.
There are some who seem to believe that treating Mr. Khadr anything other than harshly is an appeasement of terrorism, or a spit in the face of our American allies, or a shot against our brave soldiers who fought in Afghanistan. But what were we fighting for in Afghanistan except the hope that others might one day live in a society like ours: A society built on justice and the rule of law.
...on July 11th, 2014 at 10:08 am
arcticredriver says...
Andy, thanks for your exceptionally insightful article about Omar. I watched Rosemary Barton moderate a panel of pundits about the court’s ruling. One of the panelists kept harping on how we knew Omar was guilty, because he pled guilty — as if Omar’s Military Commission was comparable to a fair trial.
The other development in Omar’s case was the recent release of a memo about whether or not CIA combatants were vulnerable to facing war crimes charges. The memo was published through Freedom of Information Act requests. The memo advised that, although CIA combatants were civilians they nevertheless were not eligible for being charged with war crimes, unless they committed atrocities.
If challenges to his conviction and his sentencing succeed, based on the advice in the memo that civilian CIA combatants weren’t eligible for facing charges, that would leave his detractors able to argue that Khadr was released on a “technicality”.
I strongly suspect Omar was innocent, that if the Prosecution hadn’t destroyed all the evidence following his conviction, a fair review of that evidence would conclude he was innocent, all along.
I would prefer to see him released based on a judicial conclusion he had been innocent, all along. I would prefer to see CIA combatants remain at risk of facing war crimes charges.
That notorious film 0-dark-30 had a sub-plot about a sneaky defector who triple-crossed his CIA handlers and blew up their base. It doesn’t portray that the CIA was using the cover that its officials were a “Provincial Reconstruction Team” as their cover. Masquerading as civilians put genuine civilians at risk. I suspect their masquerade was a war crime. if Omar had fought against the Americans, and wasn’t wearing the Taliban uniform, while doing so, that lack of a uniform wouldn’t make him a war criminal, becaue the lack of uniform wasn’t due to an attempt to deceive — whereas the CIA masquerade planned to deceive.
I think that makes the CIA combatants war criminals, without making Omar a war criminal — even if he, for the sake of argument, was a participant in hostilities on 2002-7-27 — after the USA tried to capture the occupants of the compound.
Since his confession is not reliable claims Omar participated in hostilities are not reliable.
...on July 11th, 2014 at 10:51 am
Andy Worthington says...
Thanks for the encouraging words, and for the comments, arcticredriver.
I noticed the recent discussions about the potential ramifications for Omar of the immunity for CIA contractors in the drone memo. Here, for example, is Michelle Shephard in the Toronto Star: http://www.thestar.com/news/world/2014/07/02/us_drone_memo_offers_legal_ammunition_in_omar_khadr_case.html
I hope to look into it further as Omar’s legal challenge in the US proceeds.
I also share your concerns that there should be no immunity for CIA personnel, and that what Omar needs is for recognition that his conviction was fundamentally worthless.
...on July 11th, 2014 at 11:59 am
Andy Worthington says...
And here’s another good editorial from the Toronto Star, on July 10:
Ottawa’s spiteful treatment of Omar Khadr is a travesty of justice: Editorial
Omar Khadr’s case has shamed Canada from start to finish.
Omar Khadr has spent nearly half his life in prison. He should have been freed years ago. Yet Prime Minister Stephen Harper’s spiteful government seems bent on making sure he stays behind bars.
He’s in a Canadian prison now, after serving most of his 12 years in the infamous United States military detention camp at Guantanamo Bay, renowned for its abusive conditions. And if Ottawa has its way he won’t get out any time soon.
In the latest twist in Khadr’s long-running court saga, the Alberta Court of Appeal issued a unanimous ruling on Tuesday that Khadr, 27, should be serving a youth sentence in provincial custody where his chances of parole might be better, rather than in federal custody where he is now. Ottawa immediately issued its robo-response, saying it will appeal to the Supreme Court to block any transfer.
Public Safety Minister Steven Blaney said that Khadr was guilty of “heinous crimes,” though he was a minor under his father’s abusive control. This is consistent with the Conservative government’s shameless decision to abandon him to a U.S. military process that President Barack Obama himself described as a “legal black hole.”
Granted, at a time when Canadians are appalled by reports of savage international terrorism, Khadr is hardly a sympathetic figure. The son of an Al Qaeda-linked father, he agreed to plead guilty in 2010 to five war crimes, including murder “in violation of the laws of war” — throwing a grenade at U.S. Sgt. Christopher Speer during a battle between American forces and militants in Afghanistan in 2002. He was just 15 at the time and got eight years. As part of the plea, he was allowed a transfer to a Canadian prison in 2012.
The rhetoric of some Khadr family members hasn’t helped his cause. Nor has Ottawa’s drumbeat of accusations that Khadr is a terrorist, murderer and war criminal.
But Khadr counters that he pleaded guilty for fear that he would otherwise be detained in Guantanamo indefinitely. He was blinded in one eye and seriously wounded in the firefight, he says, and has “no memory at all of that day” or of throwing the grenade.
The United Nations regards Khadr as a child soldier who deserves protection not abuse. Moreover, the Supreme Court has ruled that the former Liberal government’s role in his incarceration — sending security officials to interrogate him in Guantanamo in 2003 — “offends the most basic Canadian standards” of the treatment of detained youth suspects.
This case has shamed Canada from start to finish. Khadr has already passed his parole eligibility date and can now apply at any time. But as a young offender in provincial custody he could not only apply for release to the Parole Board of Canada but also to a youth court judge. That’s something the federal government is clearly striving to prevent.
By any stretch of the imagination Khadr has done time enough. The federal government is being harshly vindictive.
...on July 11th, 2014 at 12:02 pm
Andy Worthington says...
And here’s an op-ed in the Toronto Star by Humera Jabir, a law student at McGill University, which was published on Saturday:
Ottawa’s cruel treatment of Omar Khadr must stop
Why does the federal government insist on pursuing the most severe punishment for Khadr when it benefits no one and causes such harm?
Not only does Ottawa still defend Omar Khadr’s farcical conviction at Guantanamo Bay, it also wants to see him serve an adult sentence. Luckily, the courts have more sense.
On Tuesday, the Alberta Court of Appeal ruled that the eight-year sentence Khadr received at Guantanamo was a youth sentence under Canadian law, not an adult one. The court ruled that Khadr, who is now too old for juvenile detention, should be transferred from federal prison to a provincial jail. He is to serve the remainder of his sentence as a young offender.
The court was also clear that though it is forced to tolerate the United States’ sentence, it is unconstitutional by Canadian standards. It condemned the legal process under which Khadr was held as a violation of both the Canadian Charter of Rights and Freedoms and international law. Khadr’s conviction, the court pointed out, rests on a confession elicited from him under abuse and torture tried in a military court that flouts basic principles of justice.
Ottawa is predictably up in arms. The federal government issued its response within just three hours of the ruling, saying it will try to delay Khadr’s transfer and seek an appeal to the Supreme Court. In the federal government’s view, Khadr is a criminal and terrorist convicted of “heinous crimes” and a youth sentence served in a provincial jail is an “attempt to lessen his punishment.”
The federal government’s longing for retribution does not, however, change the facts. Khadr was a boy when his father took him to Afghanistan and recruited him into his illicit activities. He was 15 years old at the time he was accused of killing an American soldier. As a minor and former child soldier, Khadr ought to be rehabilitated from a childhood of violence, not punished.
Added to this is a decade spent at Guantanamo Bay where Khadr was subject to sleep deprivation and abusive interrogation techniques. He was deprived of every safeguard and legal protection due to children and youth. That Ottawa stood by as its citizen — and a child — was arbitrarily detained, abused and tried in a kangaroo court is an enduring travesty.
The heavy-handed approach the federal government prefers will not help Khadr recover from this past. He spent his first seven months in Canada under solitary confinement in a maximum-security prison. Under a youth sentence, however, Khadr can appear before a youth court judge for a review of his detention and could be allowed to serve time in the community rather than behind bars.
Denying Khadr the support he can receive under a youth sentence is also short-sighted. Khadr’s sentence will expire in 2018 at which point he will join a receptive Canadian community of supporters who have long advocated for his release. In the years to come, he needs rehabilitation and a fair chance at reintegrating into Canadian society after over a decade in detention.
But instead, Ottawa remains intent on punishing him with the severest sentence available. The government continues to characterize Khadr as an irredeemable terrorist for whom a youth sentence is too lenient, and sadly many Canadians have bought into the rhetoric.
There is, however, good reason to believe the opposite.
Corrections officials overseeing Khadr have described him as “polite, quiet and rule abiding” and found no information showing he “espouses attitudes that support terrorist activities or any type of radicalized behaviour.” The Office of the Correctional Investigator, the federal prisons ombudsman, has complained to the federal government that Khadr is unfairly classified as medium security when he poses minimal risk.
It is clear Khadr is not the villain the federal government would like Canadians to believe he is.
Today, Khadr is working towards a high school diploma. Archbishop Desmond Tutu, visiting Alberta in May, reached out to Khadr, speaking with him over the phone. He described Khadr as “a very gentle and caring and courteous human being who does not belong where he is at present.” Tutu, who has compared the detention practices in Guantanamo to those of apartheid South Africa, added “Canadian authorities would do their stature much good if they released him immediately.”
As a minor, Khadr should have benefitted from the special safeguards due to children and youth under Canadian and international law from the very beginning of his ordeal. He should never have been tried as an adult, let alone sentenced as one.
Rather than appeal the decision, Ottawa ought to take the court’s lead and let the youth justice system do its work to help Khadr become the responsible citizen he evidently desires to be.
...on July 14th, 2014 at 8:32 pm
Peace Activist says...
I have done some campaign work on this, I’m pleased with the way things are going. There are people who want a larger sentence for Omar Khadr; and they have pushed hard against any calls for fair treatment. I have written down Omar’s address from this website, and also I’ve written down Moazzam’s address; although I already have both addresses on paper somewhere in the mess on one of the two desks in here. I was very perturbed by the news of the attack on Cage; I’ve always found them very good. I think I’ll have a letter writing day; and write to my MP among others.
...on July 14th, 2014 at 11:32 pm
Andy Worthington says...
Great to hear from you, Peace Activist, and thank you for your ongoing interest in the cases of both Omar Khadr and Moazzam Begg. Writing to MPs sounds like a very good idea, as, for the most part, our elected representatives seem to be buying into the revitalised terror narrative being peddled by the Tories – the recent emergency surveillance bill being a good example. I thought Edward Snowden’s condemnation of it was very sharp:
Also:
See: http://www.theguardian.com/world/2014/jul/13/edward-snowden-condemns-britain-emergency-surveillance-bill-nsa
...on July 14th, 2014 at 11:51 pm
paul siemering says...
once again i am compelled to point out that a huge military power in naked aggression invaded Afghanistan. Afghanistan had no armed forces to resist, so many ordinary citizens took it upon themselves to try to resist these invaders. One of these was a boy named Omar Khadr, age 15. u.s forces bombed the compound where Omar was holed up, and one brave u.s. soldier discovered Omar still alive. After first shooting the boy in the back two times, in a pattern of heroic behavior customary for his country, the soldier then dragged Omar out. Whereupon he learned that somebody had thrown a grenade that killed a u.s. soldier. Because Omar was alive, though grievously wounded, the army concluded that Omar must have thrown the grenade, no matter how impossible this was. At this point an innovation in military jurisprudence pronounced the kid guilty of murder. prior to this invading armies understood that they may be shot at by people in the invaded country. So it was that an innocent boy became a murderer, at least within the fevered minds of the world’s only super power. In the highly improbable event that Omar had thrown the grenade it was not murder by any internationally recognized standard. In any case he could not be charged because as a child soldier he is classified as a victim, not a perpetrator. Even this early in the hostilities, the u.s. had demonstrated total contempt for international law, as well as its own laws. This entire series of events have taken half of Omar’s life from him. He now holds some kind of world record for multiple victimizations.
...on July 15th, 2014 at 3:49 am
Andy Worthington says...
Hi Paul,
Great to hear from you – and thanks for the succinct history of how the US became the shredder of international law, abusing a child prisoner and then forcing him to plead guilty to war crimes invented by Congress, which, absurdly, made it a war crime to fight back against US soldiers in a war zone.
I really do think that allowing Omar’s plea deal to proceed marked a low point in Obama’s presidency.
In your narrative, all I would add is that 1) Omar’s decision to resist the invaders was not his free will. He was a juvenile, just 15 years old, and had been put in harm’s way by his father, and 2) it appears that the decision to blame Omar involved one alleged witness falsifying his statement sometime after the firefight.
Multiple victimizations, indeed. I wish every US and Canadian citizen who supports what has happened to Omar could be obliged to read the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which both countries have signed: http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx
This stipulates that juvenile prisoners “require special protection,” specifically recognizes “the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and requires its signatories to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”
...on July 15th, 2014 at 6:17 am